B-112429, SEP. 23, 1955

B-112429: Sep 23, 1955

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FREEDMAN AND LILIENTHAL: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12. CLAIMS IN THE MATTER WERE ORIGINALLY FILED BY SAMUEL HARRIS. - WHO WAS HIS BROTHER . BOTH CLAIMS WERE DISALLOWED BY SETTLEMENTS DATED JANUARY 27. CONTENDING THAT HER HUSBAND WAS ENTITLED AS BROTHER OF DANIEL AND THAT SHE SUCCEEDED TO HER HUSBAND'S RIGHTS UPON HIS DEATH. - THAT HER HUSBAND PAID PART OF THE FUNERAL EXPENSES OF DANIEL AND WAS. HER CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 7. THE DISPOSITION OF THE AMOUNT INVOLVED IS CONTROLLED BY PUBLIC LAW 636. TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE OFFICER OR EMPLOYEE IN WRITING TO RECEIVE SUCH COMPENSATION FILED WITH THE GOVERNMENT AGENCY IN WHICH THE OFFICER OR EMPLOYEE WAS EMPLOYED AT THE TIME OF HIS DEATH.

B-112429, SEP. 23, 1955

TO MESSRS. FREEDMAN AND LILIENTHAL:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 12, 1955, RELATIVE TO THE CLAIM OF MRS. GLADYS HARRIS, WIDOW OF SAMUEL HARRIS, DECEASED, FOR AN AMOUNT DUE DANIEL E. HARRIS AS AN EMPLOYEE OF THE DEPARTMENT OF THE ARMY AT THE TIME OF HIS DEATH ON APRIL 23, 1952. THERE HAS BEEN RECEIVED YOUR LETTER OF AUGUST 19, ENCLOSING A POWER OF ATTORNEY FROM MRS. GLADYS HARRIS TO YOU.

CLAIMS IN THE MATTER WERE ORIGINALLY FILED BY SAMUEL HARRIS, AS ADMINISTRATOR OF THE ESTATE OF DANIEL E. HARRIS--- WHO WAS HIS BROTHER -- AND BY BEATRICE HARRIS, WHO CLAIMED AS WIDOW OF DANIEL. BOTH CLAIMS WERE DISALLOWED BY SETTLEMENTS DATED JANUARY 27, 1953, FOR THE REASONS STATED THEREIN. SUBSEQUENTLY, MRS. GLADYS HARRIS REPORTED THAT SAMUEL HARRIS DIED SEPTEMBER 13, 1954, AND, AS HIS WIDOW, SHE CLAIMED THE AMOUNTS DUE, CONTENDING THAT HER HUSBAND WAS ENTITLED AS BROTHER OF DANIEL AND THAT SHE SUCCEEDED TO HER HUSBAND'S RIGHTS UPON HIS DEATH. SHE ALSO CLAIMED--- AS HAD HER HUSBAND--- THAT HER HUSBAND PAID PART OF THE FUNERAL EXPENSES OF DANIEL AND WAS, THEREFORE, ENTITLED TO REIMBURSEMENT. HOWEVER, HER CLAIM WAS DISALLOWED BY SETTLEMENT DATED MARCH 7, 1955, FOR THE REASONS STATED THEREIN.

WITH REFERENCE TO THE SUGGESTION THAT IF A COMPROMISE AGREEMENT APPROVED IN ACCORDANCE WITH SECTION 19/A) OF THE DECEDENT ESTATE LAW BE FILED HERE, FURTHER CONSIDERATION WOULD BE GIVEN TO THE CLAIMS, YOU SUGGEST THAT THAT SECTION HAS NO APPLICATION, CITING THE CASE OF IN RE WHITE'S ESTATE, 46 N.Y.S. 2D 917, AND YOU ASK OUR COMMENTS.

THE MATTER HAS BEEN CAREFULLY REVIEWED. AS INDICATED IN THE DISALLOWANCE OF THE CLAIM OF MRS. GLADYS HARRIS, THE DISPOSITION OF THE AMOUNT INVOLVED IS CONTROLLED BY PUBLIC LAW 636, APPROVED AUGUST 3, 1950, 64 STAT. 395. THAT LAW PROVIDES THAT UNPAID COMPENSATION DUE A CIVILIAN OFFICER OR EMPLOYEE OF THE FEDERAL GOVERNMENT AT THE TIME OF HIS DEATH, INCLUDING PAYMENT FOR ACCUMULATED AND CURRENT ACCRUED ANNUAL LEAVE, SHALL BE PAID TO THE PERSON OR PERSONS ARRIVING AT THE DATE OF DEATH IN THE FOLLOWING ORDER OF PREFERENCE AND THAT SUCH PAYMENT SHALL BE A BAR TO RECOVERY BY ANY PERSON OF THE AMOUNT SO PAID.

"FIRST, TO THE BENEFICIARY OR BENEFICIARIES DESIGNATED BY THE OFFICER OR EMPLOYEE IN WRITING TO RECEIVE SUCH COMPENSATION FILED WITH THE GOVERNMENT AGENCY IN WHICH THE OFFICER OR EMPLOYEE WAS EMPLOYED AT THE TIME OF HIS DEATH, AND RECEIVED BY SUCH AGENCY PRIOR TO THE OFFICER'S OR EMPLOYEE'S DEATH;

"SECOND, IF THERE BE NO SUCH BENEFICIARY, TO THE WIDOW OR WIDOWER OF SUCH OFFICER, OR EMPLOYEE;

"THIRD, IF THERE BE NO BENEFICIARY OR SURVIVING SPOUSE, TO THE CHILD OR CHILDREN OF SUCH OFFICER OR EMPLOYEE, AND DESCENDANTS OF DECEASED CHILDREN, BY REPRESENTATION;

"FOURTH, IF NONE OF THE ABOVE, TO THE PARENTS OF SUCH OFFICER OR EMPLOYEE, OR THE SURVIVOR OF THEM;

"FIFTH, IF THERE BE NONE OF THE ABOVE, TO THE DULY APPOINTED LEGAL REPRESENTATIVE OF THE ESTATE OF THE DECEASED OFFICER OR EMPLOYEE, OR IF THERE BE NONE, TO THE PERSON OR PERSONS DETERMINED TO BE ENTITLED THERETO UNDER THE LAWS OF THE DOMICILE OF THE DECEASED OFFICER OR EMPLOYEE.'

UNDER THE PROVISIONS OF THE CITED ACT, A PERSON OR PERSONS IN A PRIOR GROUP IN THE LISTED ORDER OF PREFERENCE ARE ENTITLED TO SUCH PAYMENT TO THE EXCLUSION OF A PERSON OR PERSONS IN ANY SUBSEQUENT GROUP OR GROUPS. IN THE ABSENCE OF SUCH A DESIGNATION AS REFERRED TO IN THE FIRST ORDER OF PREFERENCE--- WHICH THE RECORD SHOWS WAS NOT FILED BY THE EMPLOYEE IN THIS CASE--- A WIDOW IS ENTITLED TO THE EXCLUSION OF A BROTHER. ALSO, A WIDOW IS ENTITLED TO THE EXCLUSION OF A PERSON IN A SUBSEQUENT GROUP IN THE ORDER OF PREFERENCE WHO MAY HAVE PAID OR CONTRIBUTED TO THE FUNERAL EXPENSES OF THE DECEASED EMPLOYEE.

IN THE PRESENT CASE, THE RECORD INDICATES THAT MRS. BEATRICE HARRIS OBTAINED WHAT SHE BELIEVED TO BE A DIVORCE FROM DANIEL E. HARRIS IN 1936 AND MARRIED ANOTHER MAN, WITH WHOM SHE CEASED TO LIVE UPON LEARNING THAT NO SUCH DIVORCE HAD BEEN GRANTED. IT MAY WELL BE THAT, UNDER SECTION 87/D) OF THE DECEDENT ESTATE LAW AND SECTION 7-A OF THE DOMESTIC RELATIONS LAW OF NEW YORK, SUCH CIRCUMSTANCES WOULD DEPRIVE A WIFE OF HER RIGHT TO PARTICIPATE IN HER DECEASED HUSBAND'S ESTATE IN NEW YORK, AND IT WAS FOR THAT REASON AND BECAUSE OF SECTION 200 OF THE SURROGATES COURT ACT OF NEW YORK THAT THE CLAIM OF BEATRICE HARRIS WAS NOT ALLOWED. HOWEVER, UPON CAREFUL CONSIDERATION OF THE MATTER, IT HAS BEEN CONCLUDED THAT SUCH CIRCUMSTANCES DO NOT ADVERSELY AFFECT THE RIGHT OF A WIDOW UNDER PUBLIC LAW 636. SEE KANDELIN V. SOCIAL SECURITY BOARD, 136 F.2D 327. HENCE, AND SINCE IT APPEARS THAT BEATRICE HARRIS DID NOT OBTAIN THE SUPPOSED DIVORCE REFERRED TO AND THE RECORD DOES NOT OTHERWISE SHOW THAT SHE AND DANIEL E. HARRIS WERE DIVORCED, IT APPEARS THAT HER LEGAL MATRIMONIAL STATUS UNTIL HIS DEATH WAS THAT OF HIS WIFE AND, HENCE, HIS WIDOW UPON HIS DEATH WITHIN THE MEANING OF PUBLIC LAW 636. ACCORDINGLY, UNLESS IT BE SHOWN THAT THE MARRIAGE OF DANIEL E. AND BEATRICE HARRIS WAS VALIDLY DISSOLVED PRIOR TO HIS DEATH AND THAT MRS. GLADYS HARRIS IS THE SOLE BENEFICIARY OF THE ESTATE OF HER DECEASED HUSBAND, SAMUEL HARRIS, AND THAT HIS FUNERAL EXPENSES HAVE BEEN PAID, THERE IS NO BASIS FOR THE ALLOWANCE OF THE CLAIM OF GLADYS HARRIS.

HOWEVER, FURTHER ACTION BY THIS OFFICE IN THE MATTER WILL BE WITHHELD FOR A PERIOD OF 90 DAYS IN ORDER TO GIVE YOU, AS ATTORNEY FOR GLADYS HARRIS, AN OPPORTUNITY TO FILE SUCH EVIDENCE, IF YOU FEEL THAT YOU CAN DO SO. IT IS REQUESTED THAT YOU LET US KNOW AS PROMPTLY AS POSSIBLE WHETHER YOU EXPECT TO FILE SUCH EVIDENCE.